The Real Trouble with the Trump Indictment

“The first thing we do,” says Dick the Butcher in Shakespeare’s early history play Henry VI, Part II – “let’s kill all the lawyers.”

In Shakespeare’s telling, Dick the Butcher is a notorious bully – and when he calls for the murder of lawyers he’s playing a leading role in a revolt against the legitimate king. So Justice John Paul Stevens probably got it right when, in a 1985 opinion, he interpreted the line as an indirect defense of the legal profession: “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

Well, so it is; and Stevens also realized that you don’t actually have to “kill all the lawyers” in order to “dispose” of them – least of all when the bulk of the profession appears more than happy to dispose of itself.

But I doubt whether Stevens or anyone else anticipated the insouciance of the Georgia district-attorney-turned-totalitarian-activist who, by indicting Donald Trump and at least four of his lawyers on racketeering charges this month, has devised a breathtakingly simple way to make lawyers vanish: just send them to jail (along with their clients) for advocating a legal theory of which the Democratic Party disapproves.

And yes: that is the “racketeering” alleged in this so-called indictment. The felonies of which Trump and his associates stand accused in Fulton County, Georgia are the challenges they made to the results of the 2020 presidential election. No bribes, no hidden skullduggery, no usurpation of political office for private gain. No – the alleged “conspiracy” is all about Trump’s unsuccessful efforts to persuade officials that the election results were marred by irregularities and, as a result, should not be certified as a matter of law. That is all.

Forget the media frenzy about the details: who spoke with whom and when, which Trump adviser is being charged for which “debunked” claim, and so on. The important point about this indictment is that lawyers are being charged with felonies for doing legal work. An American prosecutor is criminalizing the legal profession – a business that can only end with the “totalitarian form of government” whose first steps Justice Stevens identified with the elimination of lawyers.

I really wish someone in the business would tell Ms. Fani Willis (who is currently basking in her fifteen minutes of media glory as the prosecutorial Jael to Trump’s Sisera) that if you make it a felony to offer unsuccessful legal arguments, you make it virtually impossible to offer original legal arguments at all.

But then, I’ve often wished that mainstream media had the backbone to speak out against the prosecution of Julian Assange, on the grounds that if Assange is locked up for doing what all investigative journalists do there won’t be any more investigative journalism. And yet our popular “journalists” clearly don’t give a hoot about the destruction of journalism, so long as it’s done in the service of the powers that be. And apparently they feel the same way about prosecuting lawyers for doing what lawyers have always done – just think of Clarence Darrow’s “Nietzsche made them do it” argument on behalf of Leopold and Loeb – so long as it’s Donald Trump’s head on the block. The New York Times has just printed a “guest essay” calling Ms. Willis’ 98-page travesty “brilliant.” Et tu, Brute?

But the real news is the cowardice of the nation’s lawyers. They should be rising up en masse to denounce the indictment – just as all reporters and their editors should be shouting from the rooftops in support of Assange. After all, every lawyer has a duty to protect the legal system from subversion. And whatever you think of Trump (I personally think little of him), this indictment is an unconscionable attempt to strip the electoral process of judicial oversight by criminalizing unpopular legal challenges to election results. Peel away all the flatulent rhetoric and the tedious repetition of details, and what’s left of the indictment is the claim that Trump and his lawyers are criminals because – and only because – they offered the government and the courts an unpersuasive legal theory for challenging the outcome of the 2020 presidential election.

If they can be convicted for that, the rule of law in the US political system is at an end. It’s that simple – and that serious.

Mind you, I hold no brief for the particular arguments these lawyers – Kenneth Chesebro, John Eastman, Rudy Giuliani, et al. – actually presented. Their case was a makeshift assortment of dubious legal theories and sketchy facts, and I’m not surprised that it failed. In fact, I wouldn’t have been surprised if Trump and company. had been required to pay the legal fees of their adversaries in court – a remedy the law provides when lawyers’ arguments are more creative than credible.

But it’s one thing for a judge to reject some lawyers’ last-ditch effort to protect their client’s position. It’s an entirely different matter to threaten them with racketeering convictions because they offended a powerful political organization – in this case, the Democratic Party. Legal debates – and defeats – are part of a healthy democratic society. Criminalizing legal challenges to political processes is a weapon of the sworn enemies of constitutional government, whether their names are Dick the Butcher, Adolf Hitler, Joe Biden, or Fani Willis.

Does that sound too harsh? Well, consider the paragraphs in Willis’ indictment about the attempt of Trump’s lawyers to persuade Vice President Mike Pence to refuse to certify the votes cast for Biden by members of the Electoral College. According to the indictment, that effort – because it contradicted elements of the so-called Vote Counting Act – was nothing less than a criminal undertaking in furtherance of a racketeering conspiracy.

But where would that leave those members of Congress who in January 2001 tried to persuade Vice President Al Gore to reject the Electoral College’s votes in favor of George W. Bush? That effort, too, was illegal – because the petitions presented by the Congressional representatives lacked the signature of a United States Senator. One Congresswoman actually stated that she didn’t care whether her petition carried the needed signature – to which the Vice President pithily replied, “Well, the law does care.” But no one in the press called the Democrats’ petitions “fakes” or “forgeries;” no one accused the Democratic representatives of trying to “steal” the election; and no one dreamed of charging any of them with felonies for making a doomed last stand against an election they thought had been unfairly decided.

But you can’t have it both ways. If Trump, Giuliani, Eastman, and Chesebro are criminals because they urged Mike Pence to overlook the formalities of the law in 2021, then all those Democrats who presented anti-Bush petitions on the floor of Congress in 2001 were criminals too. And the next lawyer who considers a legal objection to some future election result will know that he may face arrest, and a felony indictment, if the prevailing powers later declare his arguments “debunked.” Can a democratic electoral process survive in an environment that punishes legal challenges to perceived irregularities? I don’t know of a single commentator who has claimed that elections can be trusted to govern themselves without any sort of judicial oversight. And judicial oversight depends, necessarily, on the availability of private legal action.

So where are the throngs of angry lawyers denouncing the Willis indictment? Where are the bar association presidents, who until now have had a public opinion on just about every subject? Where are the law professors publishing op-eds in mainstream periodicals to warn us of the threat this indictment poses to the constitutional structure of the republic?

One clue to their silence may be found in the Times’ guest essay I mentioned already – the one that managed to masquerade 98 pages of political hack work as “brilliant” legal argumentation. That essay links the impending legal battle in Fulton County to the show trial staged by the so-called “January 6 Committee” – a travesty I’ve written about before. The comparison is instructive. The January 6 Committee publicized its conclusions even before its proceedings officially began – and among those conclusions was the demonization of any effort to challenge the 2020 presidential election as an attack on the nation itself. Ms. Willis probably intends to conduct her own show trial in similar fashion, and the liberal press is clearly prepared to go along. Not many lawyers are eager to be pilloried in mainstream media as traitors or subversives.

But I think there is another reason, and to understand it one needs to understand the political indoctrination of the US legal profession, a process that has only intensified over the last two decades. As a glut of lawyers made finding legal jobs increasingly difficult, bar associations and other lawyers’ organizations (nearly all of which incline to the left) seized the opportunity to impose ideological tests as a way of winnowing out, or at least marginalizing, lawyers with undesirable opinions.

The effects have been all too obvious. Thus, a recent “panel discussion” sponsored by the New York City Bar Association about “authoritarianism and lawyers” never mentioned the upending of representative democracy during the COVID coup or President Biden’s flagrant violations of the Nuremberg Code. Instead, the speakers lamented the fact that some New York lawyers had actually supported Trump’s reelection campaign. This week, the same organization is advertising an event “premised on the idea that lawyers can and should play a greater role in combating climate change.”

In other words, wherever mainstream liberalism prevails, lawyers are expected to be cogs in the machinery that is steadily pushing us all closer to totalitarianism. And the indoctrination seems to be working: few lawyers objected to the January 6 Committee show trial; and so far, at least, one can count on the fingers of one hand the lawyers who have called the Willis indictment what it is: a blatant attack on constitutional government.

Maybe some of those silent lawyers are privately displeased about what is happening, and are hoping that if they wait a bit the whole thing will go away. But I’m afraid any such hope is dangerously misguided. The totalitarians are not backing down; on the contrary, they have gained confidence and momentum over the last three years. All the terror tactics and democracy destruction we’ve witnessed since 2020 is likely only to accelerate under a series of new pretexts: another virus, “climate change,” a purported rise in “hate speech,” “white supremacism” – the list can be extended almost infinitely.

So there isn’t going to be a better time to register an objection. If you care about the integrity of the US legal system, and especially if you’re a lawyer yourself (as I am), now is the time to speak up. If we wait until Trump’s lawyers are all in jail, we may find we’ve waited too long. Yes, today it is Trump’s orange head on the block. But tomorrow we may all find ourselves threatened with prosecution for saying the wrong thing, supporting the wrong cause, or even thinking the wrong thoughts.

And when our modern equivalent of Dick the Butcher thunders, “Let’s kill all the lawyers!” – where will we be if the prospective dictator he’s advising can look back at him and say, “Lawyers? What lawyers?”